Execution Copy
EXHIBIT 99.4
TELEPORT SERVICE AGREEMENT
This Teleport Service Agreement ("TSA" or "Agreement"), effective as of this
18th day of April, 2005 (the "Effective Date"), is by and between dbsXmedia,
Inc., a corporation organized and existing under the laws of Delaware, having an
office at ___________________ ("Customer"), and Loral Skynet Network Services,
Inc., a corporation organized and existing under the laws of Delaware, having
its principal office at 0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000 ("Loral
Skynet").
WITNESSETH:
WHEREAS, contemporaneously with the execution hereof, Loral Skynet and certain
Loral Skynet-affiliated companies (the "Loral Parties") have entered into a
contract with Customer (the "Asset Purchase Agreement") governing the transfer
to Customer of certain assets relating to Loral Skynet's Business Television
("BTV") service including without limitation certain BTV equipment ("Equipment")
and BTV customer contracts (the "BTV Contracts");
WHEREAS, Customer desires to purchase, and Loral Skynet desires to sell, certain
BTV services as well as certain satellite capacity on the Telstar 12 satellite
("T12" or "Telstar 12") and to re-sell satellite capacity on the Intelsat
Americas 6 satellite ("IA-6") in order to allow Customer to continue providing
service under said BTV Contracts;
NOW, THEREFORE, Customer and Loral Skynet, in consideration of the mutual
covenants expressed herein, agree as follows:
Section 1. Services
A. Customer hereby orders, and Loral Skynet agrees to provide, the following
services (collectively, the "Services"):
(1) Transport via Loral Skynet's Network Services Infrastructure BTV
content from Loral Skynet's United States Point of Presence ("PoP"),
currently procured from Vyvx on a location in New York City (the
"NYC POP"), to the Loral Skynet Mount Xxxxxxx Teleport ("Mt.
Xxxxxxx"). The capacity of this transport will be consistent with
that required to utilize the 12 MHz of space segment (minus no more
than 1,024 kbps reserved for Loral Skynet's provision of SkyReach
P100 services (the "Shared Capacity")) provided on IA-6 for BTV
programming referenced in Section 1.A(6) below. Loral Skynet shall
continue to provide two (2) channels from the NYC POP to Mt Xxxxxxx,
and one (1) transmit channel from Mt. Xxxxxxx to the NYC POP, all of
which shall be for the exclusive use of Customer, which agrees that
it shall be responsible for the scheduling of all traffic on such
infrastructure directly with Vyvx and shall be responsible for
payment of standard hourly Vyvx rates associated with such usage.
Loral Skynet agrees not to alter the path/infrastructure or uplink
power configuration in use by Customer without Customer's prior
written consent, which shall not be unreasonably withheld. Loral
Skynet agrees that any costs reasonably incurred by Customer or its
end users as a direct consequence of Loral Skynet's implementation
of a Customer-approved path/infrastructure change will be paid by
Loral Skynet.
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(2) Transport via Loral Skynet's Network Services Infrastructure BTV
content from Loral Skynet's two European Points of Presence ("PoP"),
currently located in London, to the Loral Skynet Mount Xxxxxxx
Teleport. The capacity of this transport will be consistent with
that required to utilize the 15.5 MHz of space segment provided on
Telstar 12 for BTV programming referenced in Section 1.A(6) below.
Loral Skynet agrees not to alter the path/infrastructure in use by
Customer without Customer's prior written consent, which shall not
be unreasonably withheld. Loral Skynet agrees that any costs
reasonably incurred by Customer or its end users as a direct
consequence of Loral Skynet's implementation of a Customer-approved
path/infrastructure change will be paid by Loral Skynet.
(3) Reception via receive antennas installed and operational at Mt.
Xxxxxxx as of the Effective Date hereof, of BTV content from
satellites that Customer engages for contribution backhaul of this
BTV content.
(4) Interconnection of the received BTV content, either from Loral
Skynet's Network Services Infrastructure or satellite reception as
described in (1), (2), and (3) above, to Loral Skynet's and
Customer's BTV equipment.
(5) Generation of the necessary PowerVu, Nagra, and DVB transport
streams to continue with transmission of the T12 and IA-6 BTV
transport streams and carriers in the existing formats.
(6) Uplinking service of an approximate 15.5 MHz BTV carrier to Xxxxxxx
00 xxx xx xxxxxxxxxxx 00 XXx XXX carrier to IA-6. The IA-6 carrier
will be shared with the Shared Capacity. In the event Loral Skynet
should during the term of this Agreement cease using the Shared
Capacity for SkyReach P100 services, Loral Skynet shall send written
notice to Customer (the "RFR Notice") offering Customer the right of
first refusal, exercisable by written notice delivered to Loral
Skynet within thirty (30) days of the date of the RFR Notice, to
purchase the Shared Capacity at the then-current per-kilobit rate
Customer is paying for the remainder of the 00 XXx xx XX-0 capacity.
If Customer fails to send timely response to the RFR Notice or
otherwise declines to exercise its right of first refusal, then
Loral Skynet may put the Shared Capacity to any use that is
consistent with this Agreement. In addition, for so long as it
causes no material operational impact to Customer's provision of
services to its customers, Customer agrees that Loral Skynet may use
the Shared Capacity to broadcast its own internal "Video Town Hall
Meetings" to its employees; provided, however, that if such Loral
Skynet broadcasts should cause material operational impact, upon
written notice from Customer, Loral Skynet shall cease using the
Shared Capacity for such internal broadcasts.
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(7) The necessary equipment operation at Mt. Xxxxxxx, not including
conditional access configuration and authorization, to support BTV
program transmission.
(8) The necessary equipment operation, redundancy, repair, and
maintenance to achieve an aggregate service availability of 99.5% or
greater, as measured between the service demarcation points defined
in Section 6 below, and not including outages attributable to:
(a) planned maintenance windows;
(b) Customer's equipment, or Customer's provided portion of the
BTV service;
(c) Force Majeure causes, including, but not limited to, adverse
weather conditions, meteorological disturbances, atmospheric
disturbances, and sun outages.
(9) Co-location Services for Customer-provided equipment at Loral
Skynet's satellite teleport facility in Mt. Xxxxxxx, (the "Uplink
Facility"), pursuant to the conditions set forth in Exhibit A
hereto.
(10) Up to 100 hours per calendar month of labor at the Uplink Facility,
or such other Loral Skynet facility engaged in providing the
satellite uplink to support Customer's provision of BTV service to
its customers, including tape playout, standards conversion, content
switching and headend operation. Labor hours in excess of 100 per
calendar month will be billed one hundred twenty-five dollars
($125.00) per hour. If Customer requests that Loral Skynet provide
such services using more than one person, then labor hours will be
amortized and/or billed on a per-person, per-hour basis.
(11) Non-Preemptible, non-protected Ku-Band satellite space segment
capacity, as follows: (a) 00 XXx Xx-xxxx satellite capacity on IA-6,
located at 93(degree)W (b) 15.5 MHz Ku-band satellite capacity on
T12 located at 15(degree)W.
B. Customer may request that Loral Skynet provide additional uplink service
and or satellite capacity by submitting a written request therefor to
Loral Skynet at least sixty (60) days prior to the anticipated
commencement date for such additional services, or less if required by
circumstances and agreeable to Loral Skynet. If Loral Skynet agrees to
provide such additional services to Customer, the parties shall execute an
addendum to this Agreement setting forth the price, nature, and term of
such additional service, as well as any other provisions thereof that may
differ from the terms and conditions under which the Service is provided
hereunder.
Section 2. Customer Responsibilities
To enable Loral Skynet to perform the Services described in Section 1 above,
Customer shall provide during the term of this Agreement, and at its sole
expense, the following:
(1) Ordering, provisioning, and delivery of BTV content to Loral
Skynet's United States and European Points of Presence, or to Loral
Skynet's Mount Xxxxxxx Teleport via satellite downlink.
(2) A Client software interface system for the Customer to access
electronically Customer's Scientific Atlanta PowerVu and Nagra
Nagravision conditional access systems in Mount Xxxxxxx.
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(3) Use of the Client software interface specified in (2) above to
manage and manipulate the conditional access systems for the purpose
of authorizing and de-authorizing all BTV receivers for each BTV
program. Loral Skynet shall have no responsibility or involvement
for BTV receiver authorization or conditional access system
configuration for each BTV program transmission.
Section 3. Term and Termination
A. This Agreement shall take effect as of the date first written above when
it has been executed on each of two copies by duly authorized
representatives of each party hereto. The "Term" shall commence on the
Effective Date and continue for a period of two years. By written notice
to Loral Skynet delivered not less than thirty (30) days before the
expiration of the initial term or any renewal term hereof term hereof,
Customer may request extension of the term of this Agreement for twelve
(12) additional months under the same terms and conditions contained
herein except price, which shall be at Loral Skynet then-current market
prices.
B. Failure by Customer (i) to meet its obligations under this Agreement, (ii)
to comply with any laws or regulations of any applicable government
authority in connection with the service or its use, or (iii) to meet its
obligations under the Asset Purchase Agreement, or failure by Customer's
parent company, Ariel Way, Inc., (i) to meet its obligations pursuant to
its guarantee issued in connection with the Asset Purchase Agreement, or
(ii) to meet its obligations under the terms of the Asset Purchase
Agreement, shall in each case constitute an event of default by Customer
hereunder. In the event of such default, Loral Skynet may terminate this
Agreement on three (3) days written notice to Customer at any time, and
require Customer to pay immediately to Loral Skynet as liquidated damages
for default of this Agreement and not as a penalty the entire remaining
amounts due under the Agreement, plus all other charges, fees and payment
obligations that accrued through the date of Customer's default, together
with all other costs and expenses of collection including reasonable
attorneys' fees. Nothing shall preclude Loral Skynet pursuing any other
remedies available at law or in equity.
Section 4. Fees, Deposit, Payment and Credits
A. In consideration for the services provided pursuant to Section 1 above,
Customer will pay to Loral Skynet a fee of $150,000.00 per month for the
term hereof, subject to credits for service outages as set forth in
Section 6 below, and to credits issued in connection with the transition
of the BTV Contracts from Loral Skynet to Customer as set forth in Section
4.D below. A deposit equal to one month's fee will be due and paid on the
date of execution of this Agreement.
B. Loral Skynet will invoice for calendar months, in the first week of the
month for which payment is due. For partial-months occurring at the
beginning or ending of this TSA, Loral Skynet will prorate the monthly fee
using a thirty (30) day month. All invoices will be due Net Thirty (30)
days from date of invoice. Payments shall be made according to the payment
instructions included on each invoice, and shall be considered paid upon
receipt of collected funds by Loral Skynet. All fees associated with the
payment of an invoice are the responsibility of Customer. All payments
shall be made in U.S. dollars via wire transfer to the following account:
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Account name: Loral Skynet Network Services, Inc.
Account No.: 3916343900
ABA No.: 000000000
Bank Name: Bank of America, 00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, XX 00000-0000
C. Payment of the charges set forth in this Agreement entitles Customer to
receive only the services expressly described in this Agreement as being
covered by such charges, and all other extra or additional services which
Customer may wish to obtain from Loral Skynet shall be supplied to
Customer at prices and on such other terms as may be agreed to between the
parties. Customer is responsible and obligated to pay for its contracted
services from Loral Skynet in the event of interruption or termination of
the service due to failure or loss of satellite or telephone or data
capacity, subject to the provisions of Section 6 (Service Availability)
below.
D. Customer shall receive credits ("Revenue Credits") against its monthly
invoices according to the following plan:
(1) For each Existing Customer, as that term is defined below, the
revenue billed for the calendar month previous to the month in which
this TSA is executed shall be subtracted from the revenue billed in
the second calendar month after the month in which this TSA is
executed. By way of explanation, the later month of revenue
measurement will occur three (3) months after the earlier month of
revenue measurement. For each Existing Customer, this revenue
subtraction will produce a "Delta Revenue." For purposes of
determining Delta Revenue, ad hoc revenue and revenue that is not
required by a BTV Contract will not be included in the calculations.
With respect to an Existing Customer whose contract has not been
assigned to Customer pursuant to the Asset Purchase Agreement, for
so long as the Loral Parties are in compliance with the arrangements
set forth in the Asset Purchase Agreement with respect to the
treatment of unassigned contracts, revenue from such contract shall
be included in the calculations.
(2) If the Delta Revenue for any Existing Customer is negative, Revenue
Credits will be issued as follows:
(a) If the negative Delta Revenue occurred because an Existing
Customer did not renew an expiring contract (but excluding any
non-renewal resulting from such Existing customer moving to a
100% terrestrial platform), then the Revenue Credit will be
25% of the Delta Revenue resulting from such non-renewal.
Subject to the caps described below, Customer will be granted
a Revenue Credit in such amount for a period of three months.
For example, if the Delta Revenue is negative $10,000, then
Customer would receive a Revenue Credit of $2,500 per month
for three months.
(b) If the negative Delta Revenue occurred because an Existing
Customer terminated the applicable contract prior to the
schedule termination date (other than by reason of default on
the part of Customer or a termination resulting from the
Existing Customer moving to a 100% terrestrial platform), then
the Revenue Credit would be 50% of the Delta Revenue resulting
from such termination. Subject to the caps described below,
Customer would be granted a revenue Credit in such amount for
a period of six (6) months.
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(3) Notwithstanding the foregoing, in no event will the Revenue Credits
exceed $63,000 in the aggregate in any given month or $250,000 in
total.
(4) For the purpose of this Section 4.D, Existing Customers mean those
customers identified in the Asset Purchase Agreement as constituting
the customers whose contracts are Purchased Assets.
Section 5. Taxes
Customer will be financially responsible for paying all Taxes relating to the
Services or to amounts payable by Customer to Loral Skynet, whether or not such
Taxes are actually charged or separately stated by SKYNET. For the purposes of
this Section 5, the term "Tax" or "Taxes" means all federal state, local,
foreign, tribal, and/or provincial taxes, charges, fees, levies, imposts,
duties, tariffs, surcharges, and/or other assessments (including, without
limitation, sales, use, transfer, gross receipts, excise, withholding, Universal
Service Fund assessments or any similar charges or assessments, value added,
goods and services, government and/or signatory "xxxx-up" on space segment), and
all taxes, charges, fees, levies, imposts, duties, tariffs, surcharges, or other
assessments placed by, or replacing, any of the above, or other tax or
governmental fee of any kind whatsoever imposed by any governmental authority,
including any interest or penalties or additions thereto, whether disputed or
not. Provided, however, the term Tax or Taxes shall not include any taxes
imposed on Loral Skynet's real or personal property or net income. Customer
shall provide Loral Skynet with all applicable certificates of waiver,
exemption, relief, or evidence of waiver, exemption or relief required by any
federal, state, local or foreign Tax authority as proof that Loral Skynet would
be relieved of its obligation to charge Customer Tax in connection with this
Agreement.
Section 6. Service Availability
A. Loral Skynet will not monitor the transmission of Customer's programming
for compliance with FCC rules and regulations or for any other purpose
other than transmission integrity assurance.
B. Availability of the services described in Section 1 of this Agreement
shall be 99.5%, as measured between the service demarcation points:
Content Acquisition PoPs (currently New York; BT-London; and Xxxxxx
Xxxxxx, Xxxxxx) and the transmitted downlink BTV signal from either IA-6
or T12, except for interruptions or other problems in service due in whole
or in part to any of the following:
(1) Any act or failure to act of the Customer or customer's end
user(s);
(2) Outages attributable to Customer's equipment, or Customer's
provided portion of the BTV service;
(3) Any downtime or other interruption of facilities or services
not provided by Loral Skynet to Customer as part of the
services described in Section 1;
(4) Any planned downtime at Loral Skynet facilities for
maintenance;
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(5) Any conditions of force majeure, as defined in Section 9
C. Service Credit. Subject to the conditions of Section 6.B, above, if Loral
Skynet fails to transmit Customer's circuit for an aggregate amount of
time exceeding 0.1% in any calendar month, for reasons other than those
attributable to Customer's failure to meet its obligations hereunder,
Loral Skynet's sole and total liability and Customer's exclusive remedy
shall be limited to Customer receiving a Service Credit equal to 0.5% of
the monthly invoice amount for each 0.1% that a given month's service
drops below 99.5%, provided that in no event shall the Service Credit
exceed the monthly invoice amount. Further, the Service Credit applies
only to that portion of the service that was unavailable as defined
herewith: For the purpose of computing and issuing a Service Credit for
monthly unavailability, the availability shall be computed and credited
separately for each of two paths: a London - Telstar 12 Path (L-T12) and a
New York - IA-6 path (NY-IA6). For each of these paths, the service
demarcation points shall be the Skynet network ingress point at London or
New York and the transmitted downlink BTV signal from either Telstar 12 or
IA-6. The service availability shall be measured on each path between the
ingress (London or New York connection to Skynet network) and egress
(Telstar 12 or IA-6 downlink) demarcation points. For the L-T12 path, a
Service Credit will be issued at a rate of 0.5% of the monthly amount of
$92,100 for each 0.1% that a given month's availability drops below 99.5%,
capped each month at $92,100. For the NY-IA6 path, a Service Credit will
be issued at a rate of 0.5% of the monthly amount of $57,900 for each 0.1%
that a given month's availability drops below 99.5%, capped each month at
$57,900. Loral Skynet shall have no liability beyond the Service Credits
described herein for any failure to so transmit for an aggregate time of
99.5.% or less in any calendar month. Notwithstanding the foregoing, in
the event that availability of the satellite uplink transmission system
falls below 95% in any given month, Customer shall have the right to
terminate this Agreement without any termination liability except for its
obligation to other pay for the service provided by Loral Skynet prior to
the effective date of such termination.
D. Fault Repair and Notification. Customer and Loral Skynet shall report
problems with the service to the respective master control centers.
Customer and Loral Skynet will mutually agree upon a discrepancy report
that will be used to document such incidents
Section 7. Warranty
Except as expressly provided herein, Loral Skynet makes no representation or
warranty, express or implied, with respect to the services to be provided
pursuant to this Agreement, including without limitation any warranty of fitness
for a particular purpose or use or merchantability. The remedies provided herein
constitute the exclusive remedies in the event such warranties are breached as
determined by a court of law of competent jurisdiction or as otherwise mutually
agreed by the parties.
Section 8. Limitation of Liability
Except as set forth in Section 6 hereinabove, Loral Skynet shall not be liable
for any claims, losses, liabilities, direct damages, costs and expenses,
including attorneys' fees, arising out of Loral Skynet's failure to transmit
Customer's programming. In no event will Loral Skynet be liable for any damages
any kind, regardless of the cause of action, in excess of amounts paid by
CUSTOMER to SKYNET in connection with SKYNET's provision of the service
hereunder or for any incidental, indirect, special, or consequential damages, or
for lost profits, savings, or revenues of any kind occasioned by any cause
whatsoever, whether foreseeable or not, or whether it has been advised of the
possibility of such damages.
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Section 9. Force Majeure
Loral Skynet shall not be liable for any delay or failure in performance
hereunder arising out of or resulting from causes beyond its reasonable control
including, but not limited to, acts of God; fire; flood; adverse weather
conditions; meteorological or atmospheric occurrences or disturbances
(including, but not limited to, sun outages) or other natural events;
externally-caused interference; acts of government (including, but not limited
to, any law, rule, order, regulation or direction of any applicable government,
civil or military authority); national emergencies; insurrections; riots; acts
of war; civil disorder; quarantine restrictions; or embargoes (any one an event
of "Force Majeure"). When SKYNET's delay or non-performance continues for a
period of at least fifteen (15) days, CUSTOMER may terminate this Agreement at
no charge.
Section 10. Third Party Requirements
A. The parties acknowledge and agree that, in providing satellite
transmission services, Loral Skynet will be required to operate in
accordance with the practices and procedures of the carrier from whom
satellite transponder space or other transmission facilities are utilized.
To the extent such carrier practices and procedures are inconsistent with
the terms of this Agreement, such practices and procedures will control
Loral Skynet's performance hereunder, or as long as following such carrier
practices and procedures is within SKYNET's capabilities, except as
otherwise required as set forth in Section 10.B below. Customer represents
that such practices and procedures are the carrier's standard practices
and procedures for the accessed satellite.
B. The satellite uplink transmission services to be provided by Loral Skynet
under this Agreement are subject to regulation by the FCC. Throughout the
term of this Agreement, Loral Skynet will obtain and keep current all
licenses, permits and other approvals of the FCC or other governmental
bodies required to perform such services. Performance under this Agreement
will at all times comply with the rules and regulations of the FCC, and to
the extent they are inconsistent with the terms of this Agreement, such
rules and regulations will control Loral Skynet's performance hereunder.
Xxxxxx 00. Indemnity
A. Customer will indemnify and hold Loral Skynet harmless from and against
any and all claims, losses, liabilities, direct or consequential damages,
costs and expenses, including reasonable attorneys' fees, arising out of
or related to the content of Customer's programming or other material
furnished by Customer hereunder, including without limitation any claim
for libel, slander or infringement of copyright and/or in connection with
Customer's equipment. This indemnification shall survive any termination
of this Agreement.
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B. Except in relation to claims for which Loral Skynet has the right to be
indemnified in Section 11.A above, Loral Skynet will indemnify and hold
Customer harmless from and against any and all claims, losses,
liabilities, damages, costs and expenses, including reasonable attorneys'
fees, arising out of or relating to the activities of Loral Skynet or its
agents and employees in transmitting Customer's circuit, including but not
limited to failure to maintain necessary licenses or interference with a
third party's transmissions. This indemnification extends only to Loral
Skynet's actions in transmitting Customer's circuit, and does not in any
way affect the limitation on Loral Skynet's liability set forth in Section
8 of this Agreement. This indemnification shall survive any termination of
this Agreement.
Section 12. Independent Contractors
Neither party has any authority to make any statement, representation, warranty
or other commitment on behalf of the other party, and this Agreement does not
create any agency, employment, partnership, joint venture or similar
relationship between the parties, it being understood that Loral Skynet shall
perform all services hereunder as an independent contractor.
Section 13. Assignment Clause
Neither party may assign any rights or obligations under this Agreement without
the prior written consent of the other party, such consent not to be
unreasonably withheld, provided, however, that either party may assign its
rights hereunder without the consent of the other party to any entity with which
it may be merged or consolidated or which acquires all or substantially all of
its assets, provided that any entity acquiring assets agrees in writing to
assume all of the obligations of Customer or Loral Skynet as the case may be,
under this Agreement.
Section 14. Non Disclosure
A. Customer shall not in any way or in any form publicize or advertise any
manner the fact that it is obtaining services from Loral Skynet pursuant
to the Agreement, without the express written approval (which shall not be
unreasonably withheld) of Loral Skynet, obtained in advance, for each item
of such advertising or publicity. The foregoing prohibition shall include
but not be limited to news releases, letters, correspondence, literature,
promotional materials or displays of any nature or form. Each request for
approval hereunder shall be submitted in writing to the representative
designated in writing by Loral Skynet; and approval, in each instance,
shall be effective only if in writing and signed by said representative.
Notwithstanding the foregoing, Customer may refer to the fact that it is
securing services from Loral Skynet without Loral Skynet's prior approval
so long as such statements are limited to a statement of such act and are
not an endorsement of any product or service by Loral Skynet.
B. Loral Skynet shall not in any way or in any form publicize or advertise in
any manner the fact that it is providing services to Customer pursuant to
the Agreement, without the express written approval (which shall not be
unreasonably withheld) of Customer, obtained in advance, for each item of
advertising or publicity. The foregoing prohibition shall include but not
be limited to news releases, letters, correspondence, literature,
promotional materials or displays of any nature or form. Each request for
approval hereunder shall be submitted in writing to the representative
designated in writing by Customer; and approval, in each instance, shall
be effective only if in writing and signed by said representative. Nothing
herein shall prevent Loral Skynet from providing the FCC or any other
governmental agency, information concerning the Agreement as required by
Law or in response to a request for information by such Governmental
Agency. Notwithstanding the foregoing, Loral Skynet may refer the fact
that it is providing the service to Customer without Customer's prior
approval so long as such statements are limited to a statement of such
fact and are not an endorsement of any product or service by Customer.
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C. The Agreement shall be kept strictly confidential, except for disclosure
(1) to the extent required by the law or legal process, in which case the
parties shall seek confidential treatment of the document and the
information contained herein, (2) as a part of normal accounting and
auditing procedures, (3) to each party's parent company, or (4) to a bona
fide potential purchaser of the applicable business, investment bankers
and bona fide potential or actual lenders, provided any such party shall
have agreed to keep the Agreement confidential pursuant to an agreement
containing terms substantially similar to those in Section 14 (Non
Disclosure).
Section 15. Waiver
No waiver of any breach of this Agreement shall constitute a waiver of any other
breach of the same or any other provision of this Agreement, and no waiver shall
be effective unless made in writing. In the event that a court of competent
jurisdiction shall judge any provisions of this Agreement illegal or
unenforceable, such provision shall be severed and the entire Agreement shall
not fail but the balance of the Agreement shall continue in full force and
effect.
Section 16. Notice Clause
All notices, demands, requests, or other communications which may be or are
required to be given, served, or sent by one party to the other party pursuant
to this Agreement (except as otherwise specifically provided in this Agreement)
shall be in writing and shall be delivered by confirmed facsimile, confirmed
overnight mail, by hand or mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to CUSTOMER: dbsXmedia
[TBD by Closing Date]
City, State
Attention: Xxxxx Xxxxxxx
Phone:
Fax:
Billing Contact: dbsXmedia
[TBD by Closing Date]
City, State
Attention: Xxxxx Xxxxxxxxxx
Phone:
Fax:
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If to SKYNET: Loral Skynet
000 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Client Services
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to: Loral Skynet
000 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Director, Contracts
Phone: 000-000-0000
Fax: 000-000-0000
Either party may designate by notice in writing a new address or addressee, to
which any notice, demand, request, or communication may thereafter be so given,
served or sent. Each notice, demand, request, or communication shall be deemed
sufficiently given, served or sent for all purposes three (3) days after
depositing such notice in the United States Mail or one (1) day after delivery
to a nationally recognized overnight courier for overnight delivery if such
notice is properly addressed and the appropriate fee is prepaid, and the same
day as hand delivered or faxed with confirmation.
Section 17. Governing Law
This Agreement, and any instrument or agreement required under this Agreement,
shall be governed by and construed under the laws of the State of New York,
without giving effect to its conflict of laws principles.
Section 18. Jurisdiction
The parties to this Agreement hereby submit to the jurisdiction of the
Bankruptcy Court and the courts of the State of New York. The parties agree that
the Bankruptcy Court shall be the exclusive forum for enforcement of the
Agreement until the closing of Sellers' chapter 11 cases, and to adjudicate, if
necessary, any and all disputes with respect thereto; provided that if the
Bankruptcy Court determines that it does not have subject matter jurisdiction
over any action or proceeding arising out of or relating to the Agreement then
such actions or proceedings shall be submitted to arbitration as set forth in
Section 19 of this Agreement.
Section 19. Arbitration
Subject to Section 18 of this Agreement, the parties agree and acknowledge that
any and all disputes, disagreements, or controversies arising from or in
connection with this Agreement shall be submitted to arbitration. If a dispute
arises out of or relates to this Agreement, or its breach, and the parties have
not been successful in resolving such dispute through negotiation, then within
thirty (30) days of such negotiation, the parties agree to submit the dispute to
final and binding arbitration under the Rules of Conciliation and Arbitration of
the American Arbitration Association (AAA). Where the amount in controversy is
one million dollars ($1,000,000.00 USD) or less, the arbitration will be
conducted by a sole arbitrator agreed upon by the parties. Where the amount in
controversy exceeds one million dollars ($1,000,000.00 USD), the arbitration
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will be conducted by a three (3) arbitrator panel, with each party selecting one
(1) arbitrator and the third being chosen by the AAA. The arbitration shall be
conducted under the procedural rules of the AAA in effect on the date of this
Agreement. The arbitrator(s) shall apply the substantive (not the conflicts) law
of the State specified in Section 17 ("Governing Law") above. The arbitrator(s)
may not limit, expand or otherwise modify the terms of this Agreement or award
exemplary or punitive damages or attorney's fees. The arbitration, including
arguments and briefs, shall be in the English language and the arbitration shall
take place in New York, New York. The award shall be in United States dollars.
Judgment upon the award rendered in the arbitration may be entered in any court
having jurisdiction thereof. Each party shall bear its own expenses (including
attorney's fees) and an equal share of the costs of the arbitration. The
parties, their representative, other participants and the arbitrator(s) shall
hold the existence, content and result of the arbitration in confidence. Nothing
in this Section 18 ("Arbitration") shall be construed to preclude any party from
seeking injunctive relief in order to protect its rights pending arbitration. A
request by a party to a court for such injunctive relief shall not be deemed a
waiver of the obligation to arbitrate.
Section 20. Infringement
No license under patents (other than the limited license to use) is granted by
Loral Skynet or shall be implied or arise by estoppel, with respect to any
service offered under this Agreement. Loral Skynet will defend Customer against
claims of patent infringement arising solely from the use by Customer of
services offered under this Agreement and will indemnify Customer for any
damages awarded based solely on such claims.
Section 21. Counterparts
This Agreement may be executed in two identical counterparts; and the signature
of each party shall appear on each counterpart. Either counterpart shall
constitute an original, binding version of this Agreement. Facsimile signatures
shall be considered valid signatures as of the date hereof, although the
original signature pages shall thereafter be appended to this Agreement.
Section 22. General
A. Customer and Loral Skynet acknowledge that they have read this entire
Agreement and that this Agreement constitutes the entire understanding and
contract between the parties hereto, and supersedes any and all prior or
contemporaneous oral or written communications with respect to the subject
matter hereof, all of which are merged herein. This Agreement shall not be
modified, amended or any way altered except by an instrument in writing
signed by both of the parties hereto.
B. This Agreement shall bind, and insure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers at the places and on the dates set forth
below.
dbsXmedia, Inc. Loral Skynet Network Services, Inc.
By: By:
------------------------------ ------------------------------
Its: Its:
----------------------------- -----------------------------
Date: Date:
---------------------------- ----------------------------
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Exhibit A
CO-LOCATION TERMS
1. Permissible Use And Relocation Provisions.
(a) Customer may use the space only for the purposes of locating, operating,
and maintaining the Customer Equipment used for originating and/or
terminating telecommunications, data or video transmissions.
(b) In connection with the space made available hereunder, Loral Skynet shall
perform services that support the overall operation of the Facility (e.g.,
janitorial services, environmental systems maintenance, and power plant
maintenance) at no additional charge to Customer. However, Customer is
required to maintain the space in an orderly manner and shall be
responsible for the removal of trash, packing, cartons, etc. from the
space. Further, Customer shall maintain the space in a safe condition,
including but not limited to, complying with the prohibition against
storing combustible materials in the space. Customer shall be granted
access, during the normal operating hours of the Facility, to Customer
equipment located at the Facility, upon telephone or written request
providing forty-eight (48) hours notice, unless emergency circumstances
reasonably require Customer to access its equipment on shorter notice or
at other hours. If such emergency circumstances require access at times
when the Facility is not staffed, each hour outside of the Facility's
normally staffed hours that Loral Skynet personnel make the Facility
available to Customer shall count as one hour of labor pursuant to Section
1(A)(10) of this Agreement.
(c) Customer acknowledges that it has been granted only a license to occupy
the space and that it has not been granted any real property interests in
the space.
2. Term Of Agreement, Termination And Renewal.
(a) Customer's license to occupy the space is effective on the date of the TSA
and extends for a period ending thirty (30) days after the expiration of
the Term, including any renewals (the "License Term").
(b) In no event shall the License Term extend beyond the term of Loral
Skynet's lease of the Facility in which the space is located.
(c) The license to occupy the space granted herein is contingent on the
election by Loral Skynet to continue to own or lease the Facility in which
the space is located for the duration of the TSA.
(d) Upon termination or expiration of the License Term, Customer agrees to
remove the Customer Equipment and other property that has been installed
by Customer or Customer's agents. In the event such Customer Equipment or
property has not been removed within thirty (30) days of the effective
termination or expiration date, the Customer Equipment shall be deemed
abandoned and Customer shall lose all rights and title thereto.
(e) In the event the Facility becomes the subject of a taking by eminent
domain by any authority having such power, Loral Skynet shall have the
right to terminate the license granted hereunder. Loral Skynet shall
attempt to give Customer reasonable advance notice of the removal
schedule. Customer shall have no claim against Loral Skynet for any
relocation expenses, any part of any award that may be made for such
taking or the value of any unexpired term or renewal periods that results
from a termination by Loral Skynet under this provision, or any loss of
business from full or partial interruption or interference due to any
termination. However, nothing contained in the TSA shall prohibit Customer
from seeking any relief or remedy against the condemning authority in the
event of an eminent domain proceeding or condemnation that affects the
space.
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3. Additional Terms Governing Use Of Co-location Space: Installation Of
Customer Equipment.
(a) Before beginning any delivery, installation, replacement or removal work,
Customer must obtain Loral Skynet's written approval of Customer's choice
of suppliers and contractors. Loral Skynet may reasonably request
additional information before granting approval and may reasonably require
scheduling changes and substitution of suppliers and contractors as
conditions of its approval. Approval by Loral Skynet is not an endorsement
of Customer's supplier or contractor, and Customer will remain solely
responsible for the selection of the supplier or contractor and all
payments for construction work.
(b) Customer shall not make any construction changes or material alterations
to the interior or exterior portions of the space, including any cabling
or power supplies for the Customer Equipment, without obtaining Loral
Skynet's prior written approval for Customer to have the work performed or
have Loral Skynet perform the work. Loral Skynet reserves the right to
perform and manage any construction or material alterations within the
Facility and space areas at rates to be negotiated between the parties
hereto.
(c) Customer's use of the space, installation of Customer Equipment and access
to the Facility shall at all times be subject to Customer's adherence to
generally accepted industry standards, rules of the landlord for the
building in which the space is located, and reasonable rules of conduct
established by Loral Skynet for the Facility. Customer agrees not to erect
any signs or devices to the exterior portion of the space without first
obtaining Loral Skynet's written approval.
(d) Loral Skynet shall not arbitrarily or discriminatorily require Customer to
relocate the Customer Equipment; however, Loral Skynet reserves the right
to change the location of the space or the Facility to a site which shall
afford comparable environmental conditions for the Customer Equipment and
comparable accessibility to the Customer Equipment, upon sixty (60) days
prior written notice or upon such notice period as Loral Skynet deems
reasonable in the event of an emergency. Customer and Loral Skynet will
work together in good faith to minimize any disruption of Customer's
services as a result of such relocation. All costs of relocating the
Customer Equipment shall be borne by Loral Skynet, and Customer shall not
be required to pay for the cost of improving the space to which the
Customer Equipment may be relocated. Loral Skynet will relocate, to the
extent necessary, only the cabling and construction that was installed by
Loral Skynet or by Customer with Loral Skynet's consent.
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4. Insurance. Customer agrees to maintain, at Customer's expense, during the
entire License Term: (i) Comprehensive General Liability Insurance in an
amount not less than One Million Dollars ($1,000,000) per occurrence for
bodily injury or property damage; (ii) Employer's Liability in an amount
not less than Five Hundred Thousand Dollars ($500,000) per occurrence; and
(iii) Worker's Compensation in an amount not less than that prescribed by
statutory limits. Upon Loral Skynet's written request, Customer shall
furnish Loral Skynet with certificates of insurance which evidence the
minimum levels of insurance set forth herein and which name Loral Skynet
as an additional insured.
5. Limitation Of Liability.
(a) In no event shall either party hereto or any of its officers or employees
be liable for any loss of profit or revenue by the other party or for any
consequential, incidental, special punitive or exemplary damages incurred
or suffered by the other party, nor for any loss of power or HVAC
interruption, even if the first-mentioned party has been advised of the
possibility of such loss or damage.
(b) Customer shall indemnify and hold harmless Loral Skynet, its officers and
employees, servants, agents, affiliates and parent, from and against any
and all claims, costs, expenses or liability arising out of Customer's use
of the space or Customer's operation of the Customer Equipment within the
space, except to the extent such claims, costs, expenses or liability
proximately arise from Loral Skynet's misconduct, in which case Loral
Skynet shall indemnify and hold Customer harmless.
(c) Each party shall be liable to the other for damage or loss to any property
or persons if such damage or loss is caused by willful acts or omissions of
such party or its officers, employees, servants, agents, affiliates or
contractors or by the malfunction of any equipment supplied or operated by
said party.
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